A Sustainable Standard Of Care?

Executive Summary & Introduction

The “standard
of care”[3] is
the prevailing benchmark of professional practice in architecture and design.
For decades, it has been the threshold of protection under professional liability
insurance for architects. For centuries dating back to the 1800s in the United
States, and even longer for traditional English common law, it has been the
legal criterion for professional liability in claims and lawsuits against architects.
Most recently in 2007, the “standard of care” was officially incorporated into
the AIA contract documents as the contractual “benchmark” for professional
performance and compliance. Through Section 2.2 of the B101 (2007), the AIA
now formally adopts the prevailing standard for architectural performance to
provide:

The Architect shall perform its services consistent with the professional
skill and care ordinarily provided by architects practicing in the same or
similar locality under the same or similar circumstances. The Architect shall
perform its services as expeditiously as is consistent with such professional
skill and care and the orderly progress of the Project. [4]

Absent some extraordinary
circumstance or commitment, this “standard of care” which guides and governs
professional architecture and corresponding litigation exposure is drawn from
an external perspective which makes internal or individual potential and capacity
secondary (or even irrelevant) considerations for accountability. The design
professional’s standard of care is generally based on the performance of others
characterized as the “reasonable”, “ordinary”, or “average” design professional,
and not on internal or personal capabilities. As a result, the ultimate legal
question is generally not, “What are you capable of?”, but rather, “What would
others do?” (“WWOD?”)

The external performance focus works well where the project
and related tasks utilize time-tested industry standards with a substantial
history of application, success, and failure by others. However, what happens
when there is no history? What happens when almost no one has undertaken the
contemplated action before? What happens when the proposed product, process
or criterion has no historical application for validation? Under those circumstances,
is there even a “standard”? Certainly, it is difficult to find a comparative
“ordinary” performance for evaluation. Such is the challenge of architectural
practitioners and leaders and the affiliated and interested communities, such
as professional liability insurers, in the current age of rapid innovation
and evolution.

We live in an age of ever-accelerating change and “advancement”.
Computer technology, bio-sciences, information systems, communication systems,
manufacturing, and so much more become more powerful and diverse every day.
We also live in an era where the design and construction industry is often
at the focal point of shifting political and social imperatives for sustainability
and universal technology. For society at large, these advances are almost universally
regarded as positive steps toward a better tomorrow. For design professionals
in the construction industry, the escalation of advancement presents a mixed
blessing. On the one hand, technological advancement provides the lure and
expectation of increased opportunities and efficiencies, as well as better
ways of designing and building projects. However, those new (and, by definition,
unproven) technologies, products, and approaches also present an increased
potential for failure and disappointment. All too often, “disappointed” clients
blame the design professional.

On the opposite side of the spectrum, design
professionals also face increasing limitations on their design options or,
at the very least, shifting objectives. We now have a much better understanding
of how past innovation ultimately interacts with our environment, such that
many preferred options of the past (e.g., asbestos) are no longer available
to the industry. The increasing tension between available resources and demand
has driven the construction industry toward “green” and “sustainable” design,
with all of the inherent limitations on those objectives. As a result of these
dual forces, the design professional’s options for tried-and-true materials,
products, and processes are now often limited or relegated behind other prevailing
objectives such as sustainability, energy consumption, and social/political
agendas.

The latest round of AIA contract documents aptly demonstrates the expanding
array of variations confronting architects today. Despite the progress exemplified
by the inclusion of this simple standard of care provision, the AIA B101 included
other provisions which referenced, but did not solve, the innovative evolutions
within the design and construction industry. Specifically, the B101 references,
but does not resolve, issues associated with “environmentally responsible design
approaches” [5], “performance of equipment or systems” [6], “building information
modeling” [7], “extensive environmentally responsible design” [8], “LEED Certification”
[9], and “digital data for transmission to the Owner’s consultants and contractors,
or to other Owner-authorized recipients.” [10] In doing so, the AIA intentionally
(or accidentally) illustrated the dichotomy of a design industry measuring
itself by references to “historic” and “ordinary”, while at the same time embracing
and pursuing innovative products, processes, and performance standards which
are decidedly neither historic nor ordinary. Where these revolutionary and
innovative products, processes, and performance criteria are part of a project,
the standard of care must necessarily exist and be definable, but it is not “business as usual”.

These “opportunities of innovation” (sometimes better characterized as “crises
of necessity”) put design professionals in an extremely difficult position.
Modern day design professionals are constantly expected to find new ways of
building projects better, faster, cheaper and greener, while at the same time
they are too often viewed as professionally and financially responsible if
those new methodologies and materials do not succeed to the full extent of
their hoped-for results. Where the claim does come from a disgruntled client
who is dissatisfied with the results of the innovation, the client will necessarily
allege a failure to meet the standard of care. However, what is that standard
where there is no precedent, no clear standard for “WWOD?” with the innovation
or requirement in question?

For architects, their colleagues in engineering
and affiliated design fields, and the supporting industries of professional
liability insurance, these challenges are currently manifested under two broad
categories:

Criteria & Objectives. With expanding options in products, technology,
and non-traditional objectives, the range of potential project objectives
and architectural priorities has expanded geometrically. There is no longer
a single or predominant architectural delivery model. Too often, such variations
are not even recognized, much less clarified and confirmed. Absent such defined
selections among the competing options, what is the “standard” for performance?

Uncharted
Performance. By definition, innovative products and technology and new project
objectives and standards (such as technology) lack a tested and proven history
for performance, outcomes, and success. Experience clearly shows that not
all will succeed and that there will be further evolution into the future.
The challenge for architects is to define their current-day obligations for
incorporation or validation of the “innovation”, and their “responsibility”
for the success of those innovations into the future.

This paper seeks to analyze and provide
a framework to analyze these questions, provide practice management tools to
manage the communications, performance, and related risks proactively and,
finally, to establish a methodology of defense of claims associated with real
or perceived “failures.” In doing so, innovation will be evaluated in three
distinct categories. These categories intentionally build on one another, with
each successive category incorporating portions of its predecessor:

Products: Innovative or evolutionary products, materials, or systems incorporated into
construction of the project.

Processes: Technology has now provided a great
array of tools and processes which claim to provide the platform for a superior
design product. Historically, these have involved issues such as CADD and
project extranets. Today, the greatest challenge and allure for design professionals
and their clients is Building Information Modeling (“BIM”).

Performance: While
performance has always been a possible standard for design, it has now become
much more widely so and with far different parameters through the pervasive
focus on and requirement of sustainable design.

Nearly every innovation or evolution
confronting design professionals today falls into one or more of these categories.
When faced with that challenge, design professionals cannot simply adopt the
“industry standard” of common practice. Instead, it must define the boundaries
of their commitments consistent with their capacity to fulfill those commitments.
This is the standard of care in uncharted areas.

All information on this page is copyrighted by David A. Ericksen, Esq.,
2011. A license is granted to the AIA Trust and to members of the American
Institute of Architects to use the same with permission. The author and the
AIA Trust assume no liability for the use of this information by AIA members
or by others who by clicking on any of the links above agree to use the same
at their sole risk. Any other reproduction or use is strictly prohibited.

This information is provided as a member service and neither the Author nor the AIA Trust is rendering legal advice. Laws vary by state and members should seek legal counsel or professional advice to evaluate these suggestions and to advise the member on proper risk management tools for each project.